Affirmative Action Back On Supreme Court Docket

This is TELL ME MORE from NPR News. I'm Celeste Headlee. Michel Martin is away. Coming up, Hispaniola may be a popular vacation destination, but the nations that share that island have a complicated and sometimes violent history. We'll look back 75 years to a massacre that caused a rift between Dominicans and Haitians. That's in a moment.

First, though, let's focus on the new term of the Supreme Court. The justices begin their work today. The court, of course, made big news after its decision this summer, largely upholding the Affordable Care Act.

This term, there are several politically charged issues that could come before the court, including gay marriage and affirmative action. Here to talk about the new Supreme Court term is Professor Darren Hutchinson. He's a constitutional law professor at American University and a currently visiting professor at the University of Florida.

Professor Hutchinson, welcome to the program.

DARREN HUTCHINSON: Thank you so much for inviting me.

HEADLEE: So let's start with one case we know the court will take up this term and it's an affirmative action case called Fisher v. University of Texas at Austin. How is this case different from the last time the Supreme Court addressed affirmative action when they largely upheld racial preferences in a limited basis?

HUTCHINSON: In many ways, this case is very similar. What's changed, though, is the composition of the court. Justice O'Connor wrote the majority opinion on that case. She's now off the court and Justice Kagan is not going to be able to participate in this case because she helped out when she was at the Solicitor General's office, so this will be a very interesting test to see if affirmative action survives. A lot of people will be watching Justice Kennedy, who's the swing vote, but in many ways, the issues are about the same as the ones that came up in the last case.

HEADLEE: But with only eight justices, it could be a tie?

HUTCHINSON: It could be a tie and, in that case, the lower court decision would be affirmed and that one upheld the policy.

HEADLEE: And, just as in the last time that we saw this when it involved the University of Michigan, there are a number of corporations getting involved. Big businesses like Starbucks and Wal-Mart have actually filed briefs with the Supreme Court supporting affirmative action. Why is that?

HUTCHINSON: Well, businesses have been behind affirmative action for some time now and, in the Michigan case, Fortune 500 companies got together, filed a amicus brief that was very influential in Justice O'Connor's opinion. The argument that we get from business, the military and other important parts of American society is that diversity is important for them to carry out their mission. So businesses argued that, in order for them to reach diverse populations, both in the United States and abroad, they need a diverse workforce.

And the theory behind affirmative action is that the pathways to those leadership positions in corporate America have to be diversified in order for businesses to be diversified. It's an argument that worked the last time and we'll have to see if it works again this time.

HEADLEE: Well, one would think that that kind of amicus brief would really influence them.

HUTCHINSON: Unfortunately, that's not the entire story. There are a lot of members of the court now on the conservative bloc who pretty much disfavor affirmative action under every circumstance and don't find the business argument entirely compelling.

HEADLEE: Right. Including Alito, who replaced Justice Sandra Day O'Connor. But let's move on to some cases that the court might decide to pick up this term. There are nearly a dozen cases percolating that involve the Defense of Marriage Act and, then again, there's California's Prop 8 law, as well, although it could be that the court will pick up DOMA instead of California's Prop 8 since California seems to be specific to that state. What do you think?

HUTCHINSON: I think that's a great way of anticipating those cases. The litigation in California was very focused on California alone and overturning Prop 8. That was a strategic choice by the litigators because they really wanted to avoid this case getting into the Supreme Court.

So, now that that ruling has reversed Prop 8, there is an appeal, but the court may not take it up and, with the Defense of Marriage Act, there's a much stronger likelihood that the court would take that up. It involves a federal statute, so the court doesn't like lower courts overturning federal statutes without that important Supreme Court review.

So, if I had to bet, I would say that the Defense of Marriage Act probably would get there ahead of the same-sex marriage case because of the importance of that federal statute.

HEADLEE: If you're just joining us, you're listening to TELL ME MORE from NPR News. I'm Celeste Headlee. We're talking about the new Supreme Court term with constitutional law professor, Darren Hutchinson.

Let's talk a little about the Voting Rights Act. It requires that states have a history of discrimination at the polls to pre-clear changes to voting laws with the U.S. Justice Department. That law was upheld by an eight to one vote just three years ago, so why is it possible that this could be back before the court?

HUTCHINSON: Those Southern states - and it's not just southern states. California, for example, is also included in this pre-clearance requirement. They have been pushing and pushing to get this pre-clearance requirement overturned for some time. They failed in Congress and so they're now turning to the Supreme Court. They believe the court might favor them because of its federalism approach that favors states' rights.

The last time it came up to the court, Justice Roberts, in his wisdom, avoided a ruling that would directly challenge the Voting Rights Act, so it was decided on much more narrow grounds. However, these cases that are percolating could give the court the opportunity to address the statute at large.

But, knowing Roberts, who's very careful and many people...

HEADLEE: The Chief Justice. Yeah.

HUTCHINSON: ...say the health care ruling shows that he's concerned about his legacy, he might try to carve out a ruling that doesn't confront the statute itself.

HEADLEE: There are also a number of cases - in fact, this is interesting to me. There are two cases that could be before the Supreme Court involving drug-sniffing dogs. What is involved in these cases?

HUTCHINSON: That's a very wild development and, actually, they're both from the state of Florida, which makes it even more interesting. One of them is a situation where a drug-sniffing dog was used by a police officer, taken to an individual's home and, outside of the home, the dog detected marijuana and then the cop executed a search, found drugs, drug making paraphernalia and arrested the individual.

The Florida Supreme Court held that that was an unconstitutional search, that there's an expectation of privacy in the home and that it's so strong, the police officer needed a warrant to use the dog in front of the home.

The other case involved a vehicle search. So in that case, an individual was stopped, routine traffic violation. The dog sniffed the door and reacted as if there were drugs in the car and the cop searched the inside of the trunk.

The Florida Supreme Court said you needed much more information about the dog. Is it a reliable scenting dog? Has it made mistakes in the past, etc., before that search could be justified. So this will be a very interesting development in criminal procedure when the court examines those two cases.

HEADLEE: And, of course, we're talking about private property, a house and a personally owned vehicle, as opposed to a public place, like an airport, where it's not up to question. Right?

HUTCHINSON: Absolutely. And, particularly to the home case, the home receives very heightened protection under constitutional law. So in many ways, I believe the Florida court probably has the better argument. With the vehicle search, however, because it's in the public, because there was already a traffic violation going on, I could easily see the court siding with the state in that case. And, also, the requirements about showing the records of the dog's training history, etc. - the court could view that as too burdensome and onerous on states.

HEADLEE: That's a little bit similar to some other concerns that could come before the court. There's issues involving police use of GPS, as well.

HUTCHINSON: Yes. That's a very interesting case. So, earlier this year, the Supreme Court held that placing a GPS tracking device on a car constituted a search for which you needed a warrant. So now, police are using cell phone records, which obviously can provide very similar information, in order to track suspects.

And so there's a case that could make it to the Supreme Court and this case actually has conservatives and liberals aligned in many ways, where the officers used cell phone records in order to track an individual and then finally make an arrest.

So the court decided that GPS-based searches constitute a search, which you need a warrant. Now, they could be called to decide whether cell phone records have the same requirements. This is an interesting case because of such widespread implications. Everyone today virtually carries a cell phone and if police don't need a search warrant in order to track people with cell phones, that could have very broad consequences in terms of law enforcement and privacy.

HEADLEE: We're speaking with constitutional law professor Darren Hutchinson, and you mentioned earlier, Darren, about the chief justice being worried about his legacy. How do you think that might play out in this term? How might that affect what cases the court chooses to review and how those decisions come down?

HUTCHINSON: Right. That's very interesting. It's hard to know how that affects what cases they take. Sometimes, the arguments go that, in order to avoid controversy within the court, in order to avoid the court projecting itself too early into certain conflicts - and you could say that same-sex marriage is one of those conflicts - that the court could avoid reviewing certain cases.

So it could impact what cases the court takes. It's clearer, however, that concern about legacy could impact how the court reviews certain cases and the Voting Rights Act in particular will provide a challenge to Justice Roberts on those lines.

So, in the last case that he decided, he indicated frustration with free clearance, but he didn't reach that question. He decided on much narrower grounds. Again, now that this issue could come to the court, will he stick to that structural thing of deciding things in a very narrow fashion or will he take on the Voting Rights Act more broadly? I suspect that he would try to avoid that controversy unless there's a solid basis for him reversing it.

HEADLEE: Well, we'll have to see how it plays out. That was Professor Darren Hutchinson, constitutional law professor from American University. He joined us from WUFT in Gainesville, Florida. Thank you so much.

HUTCHINSON: Thank you very much.

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HEADLEE: Coming up, Keija Minor made history when she assumed the top job at Brides magazine. She's now the first African-American editor in chief of a Conde Nast magazine.

KEIJA MINOR: I think we all come to this with our own personal experiences and how much diversity plays into that probably depends on the editor.

HEADLEE: We talk diversity in the magazine world and making a wedding day special on a limited budget. That's coming up on TELL ME MORE from NPR News. I'm Celeste Headlee.